1. In order to establish negligence, a plaintiff must prove the existence of a duty, a breach of
that duty, an injury, and proximate cause, that is, a causal connection between the duty
breached and the injury suffered.

2. The existence of a legal duty is a question of law to be determined by the court. Appellate
courts have unlimited review of questions of law.

3. There is no duty so to control the conduct of a third person as to prevent him or her from
causing harm to another unless (a) a special relation exists between the actor and the third
person which imposes a duty upon the actor to control the third person's conduct, or (b) a
special relation exists between the actor and the other which gives to the other a right to
protection.

4. There is no duty owing in situations where an actor does not have the ability or the right
to control a third person who causes harm.

5. A possessor of land who holds it open to the public is under a duty to aid or protect
members of the public who enter in response to his or her invitation.

6. The fact that an actor realizes or should realize that action on his or her part is necessary
for another's aid or protection does not of itself impose upon him or her a duty to take
such action.

7. An occupier of land owes a duty of reasonable care under the circumstances to all entrants
on the property who are present with the occupier's consent.

8. Before a landowner may be held liable for an injury resulting from a dangerous condition
on his or her land, the plaintiff generally must show that the landowner had actual
knowledge of the condition or that the condition had existed for such a length of time that
in the exercise of ordinary care the landowner should have known about it.

9. The argument that a spouse is to be equated with and considered to be "property" or a
"dangerous condition" in order to give rise to premises liability has no support in reported
Kansas cases.

10. Under the facts in this case: (1) There was no special relationship between a wife
and her
husband or the wife and a minor giving rise to a duty of the wife to warn the minor of the
unknown and unexpected criminal acts on the husband's part; (2) in the absence of a duty,
there can be no breach of a duty and no basis for a negligence cause of action; and (3)
there is no basis for premises liability on a wife's part for her husband's criminal acts
occurring on the real property jointly owned by the wife and husband.

Review of the judgment of the Court of Appeals in an unpublished decision filed July 30,
2004. Appeal
from Wyandotte district court; R. WAYNE LAMPSON, judge. Judgment of the Court of Appeals
reversing the
district court is reversed. Judgment of the district court is affirmed. Opinion filed June 3, 2005.

Patrick R. Miller, of Ullman, Dezube & Miller, P.A., of Overland Park,
argued the cause and was on the
brief for appellant.

Derrick A. Pearce, of Wallace, Saunders, Austin, Brown & Enochs,
Chartered, of Overland Park, argued
the cause and was on the brief for appellee Carol Bliss.

The opinion of the court was delivered by

LARSON, J.: In this first impression damage action, we must decide if the wife of a
criminal offender has a special relationship with a minor, giving rise to her having a duty to warn
the minor of the likelihood of being sexually abused by her husband.

We must further decide if liability may be imposed on the wife of a criminal offender under
the theory of premises liability, as described by Restatement (Second) of Torts § 314A(3)
(1964)
for the criminal acts of her husband occurring on real property which they jointly owned and
where they both resided.

In answering these questions, we set forth the facts, the history of the litigation, and the
rulings of the district court and Court of Appeals; state the standards of review and the
contentions of the parties; and analyze the duty to warn and premises liability issues before
reaching our conclusions.

Factual Background

D.W. met Richard Bliss in May 1998 while D.W. was waiting for a school bus in his
neighborhood. Richard asked D.W. if he would mow Richard's lawn, and D.W. agreed to do so.

During the summer of 1998, D.W. became 15 years old in July and developed a
relationship with Richard. The two spent time together playing racquetball, fishing, shopping,
watching television in Richard's house, and just talking. Richard gave D.W. gifts and money.

D.W.'s mother initially believed Richard was acting as a mentor to D.W. Richard was
active as a leader and mentor in various youth groups and regularly devoted time to such
endeavors.

During this time, Richard was married to Carol Bliss, and they resided together in Johnson
County. Carol was present during some of the time Richard and D.W. spent together at the Bliss
home, but there was little interaction between Carol and D.W., who characterized his relationship
with Carol as nonexistent. D.W.'s telephone calls were to Richard; Carol never invited D.W. to
the Bliss household. Carol was never involved in D.W.'s activities either inside or outside of the
Bliss home.

In the fall of 1998, Richard began having criminal sexual encounters with D.W. Most were
outside the Bliss home at the Wolbach Farm, at a duck club in Wyandotte County, and in Bennett
Springs, Missouri. Carol never witnessed any of the encounters and denied she knew about them.
D.W. did not believe Carol knew the encounters were occurring. Richard and D.W. made every
effort to conceal the improper relationship from Carol.

Several months later, Richard hired a prostitute for D.W. Ultimately, the criminal acts
perpetrated by Richard became known. As the result of his illicit sexual actions with D.W.,
Richard pled guilty in Wyandotte County to one count of furnishing alcohol to a minor and one
count of aggravated indecent liberties and pled guilty in Johnson County to one count of
aggravated indecent liberties.

After the charges against Richard were filed, two men, A.M. and G.S., whom Richard had
previously mentored, came forward to D.W.'s family and admitted having sexual relationships
with Richard. Deposition testimony clearly showed that neither sexual relationship occurred until
both men were adults. Both men met Richard while they were teenagers.

A.M., born in February 1966, met Richard when he was 14 years old through a YMCA
mentoring program. He lived in the Bliss home for 2 or 3 months as a sophomore in high school
when he had problems with his mother. A.M. began having sexual encounters with Richard after
he turned 18 and continued until he was 22. Richard and A.M. continued a friendly relationship
after they ceased being involved sexually.

A.M. testified to an incident where Carol started to enter a room where he and Richard
were watching a pornographic movie and masturbating each other. The tape was turned off, and
Richard met Carol at the door. A.M. knew they talked but did not know what was said. Another
time, Carol started down the stairs into the basement where Richard was performing oral sex on
A.M. A.M. stated he quickly pulled his pants up, and Carol stopped part way down the stairs and
went back up the stairs, saying nothing. A.M. admitted it was speculation on his part as to
whether Carol knew about the sexual encounters.

A.M. introduced G.S. to Richard while they were in high school. G.S., born in December
1965, mowed Richard's lawn. After he turned 18, he moved into the Bliss house. G.S. did not
begin to have a sexual relationship with Richard until he was 18, and it continued until 1990,
when he was 25 years old. After the sexual encounters stopped, he continued to live in the Bliss
home for some time and enjoyed a family-type relationship with Richard and the two Bliss
daughters.

G.S. testified that while he was living in the Bliss house, there were a number of times
when Carol came upstairs to the bedroom and knocked on the closed door when he and Richard
were engaged in sexual activity. Richard would go to the door and speak with Carol, but G.S. did
not hear the conversation. There was also testimony that Carol found pornography under G.S.'s
bed. G.S. testified Carol never witnessed any of the acts and that he and Richard agreed to keep
the sexual relationship secret from Carol.

D.W., G.S., and A.M. all testified in their depositions that Richard lied to Carol to prevent
her from having knowledge about his sexual encounters with them. In his deposition, Richard
claimed Carol had absolutely no knowledge about his sexual relationships. He said he had hidden
them for more than 10 years. He denied that Carol had ever given any indication that she knew of
his sexual relationships with D.W., G.S., or A.M.

History of Litigation

D.W. brought a civil action against Richard and Carol. D.W. later dismissed with
prejudice his action against Richard, leaving Carol as the sole defendant. D.W.'s claims were for
negligence, negligent infliction of emotional distress, and defamation by Richard's attorney. D.W.
alleged Carol knew about Richard's sexual propensities based on the statements of G.S.and A.M.
and should have warned him. D.W. further argued that Carol, as co-owner of the home, had a
duty to warn him of the dangerous conditions existing on the property. D.W. finally contended
Carol conspired with Richard to harm him by using marital funds to hire attorneys who defamed
him by their communications.

Carol, by her answer and summary judgment affidavit, denied any knowledge of Richard's
sexual relationships with D.W., G.S., or A.M. until after Richard's arrest on the charges involving
D.W. She denied walking in on encounters between A.M. and Richard and stated she routinely
knocked on G.S.'s door out of respect for his privacy just like she did with her daughter's doors.
She stated it was not unusual for young men to be around the house, as Richard had mentored
many during their marriage. She admitted to finding pornography in G.S.'s room but did not
equate that to a sexual relationship between G.S. and Richard. She denied D.W. was ever in her
care, custody, or control.

Carol moved for summary judgment, contending there was no material evidence she knew
Richard was a threat to D.W.; D.W. had never been in her care, custody or control; she had no
special relationship with D.W. or Richard giving rise to a duty to warn or protect D.W.; and the
claims of negligent infliction of emotional distress, child endangerment, and civil conspiracy failed
as a matter of law. D.W. withdrew his claims for negligent infliction of emotional distress and
child endangerment, but responded on his claims of negligence and civil conspiracy, stating
summary judgment was improper.

District Court's Ruling

The district court granted Carol's motion for summary judgment on all counts. The court
stated and held:

"Plaintiff has filed several counts against the defendant Carol Bliss. These counts
are
based upon three separate duties: one, that Carol Bliss was entrusted with the care of the plaintiff
and that this created a duty which was breached by her failing to stop her husband from having
sexual relations with plaintiff, two, that as co-owner of the property (house) she has a duty to
warn licensees of dangerous conditions which exist on the property, and she failed to make such
warnings, and third, that she conspired with her husband to cause harm to the plaintiff by use of
marital funds to hire attorneys who defamed plaintiff by their communications.

"The Court has examined each of the cases cited in the parties' briefs, and after
said
review does find that the Bauswell v. Mauzey, 916 F. Supp. 787, which was decided
by Judge
Van Bebber in 1996 does correctly set out the law of Kansas in this area, and application of
Bauswell convinces this Court that Carol Bliss is entitled to summary judgment as to
all claims
against her. Simply the Court finds that no duty existed in this case that could be breached, and
therefore no liability can be placed on Carol Bliss. Both the claims as to 'special relationships'
require that Carol Bliss be in charge or control of either her husband or the plaintiff. No facts
suggest this to be the case. Plaintiff was the guest of Mr. Bliss and even if the court finds that
Carol Bliss knew of the sexual acts with the other men some 10 years before, the
Bauswell case
makes it clear that this does not create duty, unless the special relationship exists.

"Further, no facts are present which indicate that Carol Bliss communicated any
statements or writings to anyone which can be the basis for the defamation claim. Mere use of
marital funds to employ her husband's attorney cannot rise to the level necessary for defamation
or civil conspiracy."

Court of Appeals' Ruling

D.W. appealed to the Court of Appeals, contending Carol owed a duty to him while he
was in the Bliss home and that sufficient facts existed to establish that Richard's acts were
foreseeable to Carol.

Carol argued there was no special relationship between her and Richard or D.W. to give
rise to a duty to warn D.W. and that Richard's conduct was not foreseeable by her.

The Court of Appeals' opinion recited our well known standard of review of summary
judgment motions and the necessity in negligence actions to show the existence of a duty, and
then examined whether a duty existed. The Court of Appeals' opinion quoted Restatement
(Second) of Torts § 315 (1964), which stated there was no duty to control the conduct of a
third
person unless a special relationship existed that imposed a duty to control the third person's
conduct, or a special relationship existed between the actor and the other that gave the other a
right to protection. The opinion stated none of the relationships as set forth in Restatement
(Second) of Torts §§ 316-19 existed under these facts, "i.e., the
relationship between Carol and
Richard did not require Carol to control Richard's sexual conduct with D.W." D.W. v.
Bliss, No.
91,247, unpublished opinion filed July 30, 2004, slip op. at 9.

The Court of Appeals' opinion then noted comment (c) to § 315 referred to
§§ 314A and
320 and stated: "The only section which comes close to applying to the relationship between
Carol and D.W. is § 314A(3), which states: 'A possessor of land who holds it open to the
public is
under a similar duty to members of the public who enter in response to his invitation.'" Slip op. at
9. The opinion observed there was no evidence Carol held her residence open to the public but
notes Restatement (Second) of Torts § 314A, comment b stated the specifically listed
relations
"'are not intended to be exclusive, and are not necessarily the only ones in which a duty of
affirmative action for the aid or protection of another may be found.'" Slip op. at 9.

The Court of Appeals next noted the distinction between licensees and invitees had been
abolished by Jones v. Hansen, 254 Kan. 499, 509, 867 P.2d 303 (1994). The court
then stated
D.W. was at least a licensee and concluded: "Therefore, Carol owed D.W. a duty to protect him
from defective or dangerous property conditions." Slip op. at 10. Thus, the opinion equated
Richard with a partially concealed defective stairwell.

The Court of Appeals' opinion quoted Nero v. Kansas State University, 253
Kan. 567,
584, 861 P.2d 768 (1993), stating: "'Prior similar acts committed upon invitees furnish actual or
constructive notice to a landowner.'" Slip op. at 10. The opinion then stated the Nero
rule should
apply to social guests and concluded: "[I]f it was foreseeable that Richard would sexually abuse
D.W., Carol had a duty to exercise reasonable care to protect D.W." Slip. op. at 11.

The opinion held a genuine issue existed as to whether Carol knew about Richard's sexual
relationships with A.M. and G.S., making this a fact question as to whether Richard's criminal
conduct should have been foreseeable to Carol. The Court of Appeals then held summary
judgment was inappropriate. Slip op. at 13.

Carol's Petition for Review

Carol's petition for review argues a special relationship is not established by saying the
facts "'[come] close'" to those required by the Restatement. She contended that equating Richard
with a defective and dangerous property condition was legally incorrect. Carol stated she did not
have the right to control Richard's usage of their jointly owned home. Carol pointed out she never
had custody and control of D.W., who came into the Bliss home only on Richard's invitation. She
contended her situation was similar to Gardin v. Emporia Hotels, Inc., 31 Kan. App.
2d 168, 172,
61 P.3d 732, rev. denied 275 Kan. 963 (2003), where the relationship between the
plaintiff and
the motel was "too far removed" to impose a duty upon the motel. Carol argued that under the
Court of Appeals' reasoning, there would be no end of the duties a wife would owe for her
husband's criminal actions so long as they occurred in a residence they jointly owned.

We granted Carol's petition for review.

Standard of Review

The standard of review of grants of summary judgment is well known and often stated.
K.S.A. 60-256(c) teaches us a party is entitled to summary judgment if "there is no genuine issue
as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." We
have further said:

"'Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
The trial court is required to resolve all facts and inferences which may reasonably be drawn
from the evidence in favor of the party against whom the ruling is sought. When opposing a
motion for summary judgment, an adverse party must come forward with evidence to establish a
dispute as to a material fact. In order to preclude summary judgment, the facts subject to the
dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules
and where we find reasonable minds could differ as to the conclusions drawn from the evidence,
summary judgment must be denied. [Citation omitted.]'" Exploration Place, Inc. v. Midwest
Drywall Co., Inc., 277 Kan. 898, 900, 89 P.3d 536 (2004) (quoting Bracken v. Dixon
Industries,
Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 [2002]).

However, as McGee v. Chalfant, 248 Kan. 434, 437, 806 P.2d 980 (1991),
noted: "The
existence of a legal duty is a question of law to be determined by the court." We have unlimited
review of questions of law. T.S.I. Holdings, Inc. v. Jenkins, 260 Kan. 703, 716, 924
P.2d 1239
(1996).

Special Relationships, Duty to Warn, Premises Liability

We must first determine if there is a special relationship between Carol and Richard or
Carol and D.W. giving rise to Carol's duty to warn D.W. of Richard's propensity to commit
criminal child abuse.

In doing this, we must first recognize there was no evidence of any prior criminal acts by
Richard. Richard's last involvement with G.S. stopped in 1990, 8 years prior to the acts involving
D.W.

The necessity of proving the existence of a duty is based on the requirements of
establishing negligence. In Williamson v. City of Hays, 275 Kan. 300, 311, 64 P.3d
364 (2003),
we said: "'In order to establish negligence, a plaintiff must prove the existence of a duty, a breach
of that duty, an injury, and proximate cause, that is, a causal connection between the duty
breached and the injury suffered.' [Citation omitted.]" The necessity of establishing existence of a
duty is essential, for without a duty there can be no breach to support D.W.'s claim. See
Hackler
v. U.S.D. No. 500, 245 Kan. 295, 297, 777 P.2d 839 (1989).

Generally, an actor has no duty to control the conduct of a third person to prevent that
person from causing harm to others unless there is a special relationship between the actor and the
third party or the actor and the injured party. Restatement (Second) of Torts § 315 (1964);
Thies
v. Cooper, 243 Kan. 149, 151, 753 P.2d 1280 (1988). As we said in Nero v. Kansas
State
University, 253 Kan. at 571-72:

"As far back as 1983, this court, speaking through Justice McFarland, stated:

'Although this court has never formally adopted . . . § 315, . . . we
discussed the concept of special relationship in Robertson v. City of Topeka,
231 Kan. 358, 644 P.2d 458 (1982). . . . We observed a special relationship or
specific duty has been found when one creates a foreseeable peril, not readily
discoverable, and fails to warn. 231 Kan. at 364.' Durflinger v. Artiles, 234
Kan. 484, 499, 673 P.2d 86 (1983)."

The Restatement (Second) of Torts § 315 (1964) states:

"There is no duty so to control the conduct of a third person as to prevent him
from
causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a
duty
upon the actor to control the third person's conduct, or

(b) a special relation exists between the actor and the other which gives to the
other a
right to protection."

Comment c to § 315 explains:

"The relations between the actor and a third person which require the actor to
control
the third person's conduct are stated in §§ 316-319. The relations between the actor
and the other
which require the actor to control the conduct of third persons for the protection of the other are
stated in §§ 314A and 320."

Our prevailing rule in Kansas is that in the absence of a "special relationship," there is no
duty of an actor (Carol) to control the conduct of a third person (Richard) to prevent harm to
another (D.W.). As was noted in C.J.W. v. State, 253 Kan. 1, 8, 853 P.2d 4 (1993),
there may be
special relationships giving rise to a duty to control in situations described in Restatement
(Second) of Torts between a parent and child (§ 316), master and servant (§ 317),
persons in
charge of one with dangerous propensities (§ 319), and persons with custody of another
(§ 320).
We have a number of appellate decisions involving these sections of the Restatement. Some have
helpful language, but many involve governmental agencies as the "actor" and are clearly different
factually from our situation.

We do have a trilogy of Kansas cases involving health care professionals as the actors and
§ 315 duties of control in issue.

In Boulanger v. Pol, 258 Kan. 289, 307, 900 P.2d 823 (1995), we held a
psychiatrist did
not have a duty to control or warn of the actions of a voluntary patient where the third party
(plaintiff) was aware of the potential danger. Calwell v. Hassan, 260 Kan. 769, 925
P.2d 422
(1996), involved a claim by an injured bicycle rider against a physician who was treating the driver
of a car who fell asleep and hit the plaintiff. We held no special relationship existed that would
impose a duty on the defendant physician under § 315, and further no duty was owed from
the
defendant physician to the injured plaintiff under § 324A of the Restatement (Second) of
Torts.
260 Kan. at 789.

The third case, Hesler v. Osawatomie State Hospital, 266 Kan. 616, 971 P.2d
1169
(1999), involved claims against individual physicians and nurses and the State Hospital where a
patient on a temporary off-grounds pass riding with his mother in a car grabbed the steering wheel
of the car, causing it to veer into the path of the vehicle occupied by the plaintiffs. Here there was
evidence of prior dangerous propensities of the patient toward himself but no express threat to
any other parties, including the plaintiffs.

Justice Abbott, writing for the Hesler court, noted the review in
Boulanger of cases
involving § 315 and relied on Schmidt v. HTG, Inc., 265 Kan. 372,
961 P.2d 677, cert. denied
525 U.S. 964 (1998), where we held no duty existed under § 315 to warn the third party
(Stephanie Schmidt) about the dangerous propensities of a parolee in the absence of an express
threat. The Hesler opinion states: "Even if this court found that a special relationship
existed,
[which it did not] the question of whether the duty to control extends to a duty to warn potential
victims would remain." 266 Kan. at 630.

Although the actor was a school district and not an individual, in Beshears v. U.S.D.
No.
305, 261 Kan. 555, 566, 930 P.2d 1376 (1997), we held no duty was owed from a
defendant
school district to the minor plaintiff for injuries occurring off school premises and after school
hours. Justice Six relied on the following quote from Calwell: "'We have found a duty
owing
under § 315(a) only in situations in which the party owing the duty did have the ability or
right to
control the third person causing the harm.'" 261 Kan. at 561. We held U.S.D. 305 had neither the
ability nor the right to control the plaintiff or the third person causing the harm.

The trial court and the Court of Appeals found no duty on the part of Carol to control
Richard. Nor do we. There is no basis for liability here under the general principle of Restatement
(Second) of Torts § 315(a).

However, § 315(b) speaks of the existence of a special relationship between the
actor
(Carol) and the other (D.W.) which gives to the other a right of protection. This points us to
§314A of the Restatement (Second) of Torts, which in applicable part states:

"§ 314A. Special Relations Giving Rise to Duty to Aid or Protect

. . . .

"(3) A possessor of land who holds it open to the public is under a similar duty to
members of the public who enter in response to his invitation."

This is an exception to the general rule of § 314 relating to the "Duty to Act for
Protection of
Others," which states: "The fact that the actor realizes or should realize that action on his part is
necessary for another's aid or protection does not of itself impose upon him a duty to take such
action."

As comment (a) to § 314 teaches us, the above general rule should be read with the
other
sections to follow. We therefore look to § 314A(3), which, when read explicitly, would not
impose upon Carol (the actor) any duty to members of the public (D.W.).

In the first place, Carol never held her home open to members of the public. In addition,
the record in our case is clear that D.W. never entered the Bliss home in response to Carol's
invitation. Richard was always the invitor of D.W., who characterized his relationship with Carol
as nonexistent.

At this point, it would be logical to hold § 314A(3) is simply not applicable to our
facts.
However, the Court of Appeals' opinion points to the caveat to § 314A which states, "[t]he
Institute expresses no opinion as to whether there may not be other relations which impose a
similar duty," and notes the distinction between licensees and invitees has been abolished in
Kansas. The Court of Appeals' opinion then applied the rule that "the occupier of land owes a
duty of reasonable care under the circumstances to all entrants on the property who are present
with the occupier's consent." Jones, 254 Kan. at 509; D.W., slip op. at
9-10.

The Court of Appeals next suggests that Carol owed D.W. a duty to protect him from a
defective or dangerous property condition; equates Richard with a partially concealed stairwell;
and sets forth the quote from Nero, 253 Kan. at 584, that "[p]rior similar acts
committed upon
invitees furnish actual or constructive notice to a landowner." According to the Court of Appeals,
this made the foreseeability of Richard sexually abusing D.W. a fact issue to be determined by a
jury and requiring summary judgment in Carol's favor to be reversed.

There are numerous problems with this analysis. First, the actual relationship, or lack
thereof, between Carol and D.W. is directly contradictory to the specific language of §
314A(3).
Our facts are simply not applicable to § 314A(3).

Next, the caveat to § 314A about the relationships specified not being intended to
be
exclusive is utilized to create a new duty on behalf of a wife, resulting in legal responsibility for
the criminal acts of her first-time offender husband. If we apply the Restatement caveat in this
manner, we would be rewriting the Restatement as we wish it to read without limitation.

It is not logical to create liability when clearly distinguishable facts are only "close" to
what is necessary to establish a special relationship. We have, in all our special relationships/duty
cases, followed the outlines of the Restatement, and to judicially create responsibility based on the
marriage relationship would create a "slippery slope" of unlimited possibilities for family liability
that would have no practical stopping point. See Gritzner v. Michael R., 235 Wis. 2d
781, 797,
611 N.W.2d 906 (2000), for a discussion of the "slippery slope" problem in such a holding.

Equating the acts of a husband to a "defective and dangerous property condition" has the
effect of establishing the existence of a duty dependent upon the relative degree of harm to a
plaintiff. This we have never done despite the tragedy imposed on victims in cases such as
Hesler,
266 Kan. 616; Schmidt, 265 Kan. 372; Beshears, 261 Kan. 555; and
Calwell, 260 Kan. 769.

However, we recognize there is a special relationship between possessors of land and their
licensees that may lead to premises liability. See Jones, 254 Kan. at 509;
Nero, 253 Kan. at 572.
This is a readily accepted theory of legal liability in Kansas that we must consider.
D.W.'s counsel
most strongly relied on Jones and Nero and argued they must be applied
in this case.

Our Kansas law on premises liability underwent a change in Jones, where we
eliminated
the historical distinction between duties owed to licensees and invitees and held: "The duty owed
by an occupier of land to invitees and licensees alike is one of reasonable care under all the
circumstances." 254 Kan. at 509.

In Gragg v. Wichita State Univ., 261 Kan. 1037, 934 P.2d 121 (1997),
premises liability
was in issue, as was the relationship of the parties. The plaintiffs were the heirs of Barbara Gragg,
who was shot and killed by a stranger, Anthony Scott, at a 1993 fireworks display held on the
campus of Wichita State University (WSU). Additional defendants were the sponsors of the
Independence Day celebration. In upholding summary judgment for all the defendants,
§§
314A(3), 318, and 344 of the Restatement (Second) of Torts were considered. We held that none
of the sponsors were possessors or in control of the premises or had violated any duty to Gragg.
261 Kan. at 1045-47. As to WSU, we held that the Graggs failed to show, as a matter of law, that
a special duty existed on behalf of WSU to protect Gragg from the unanticipated and unexpected
attack by Scott. 261 Kan. at 1057.

The Graggs had attempted to place WSU in the same shoes as Kansas State University
(KSU) was in Nero, just as D.W. does here. Nero is clearly
distinguishable here for, as we said in
Gragg: "Nero's holding . . . is more basically represented as follows:
'KSU is a landlord furnishing
housing to its students in competition with private landlords. It owes a duty of reasonable care to
its tenants.'" 261 Kan. at 1053.

Nero is, in reality, a landlord and tenant case, and the duty of care involved
was that of a
third party known to KSU to have recently been charged with rape. This is totally different from
the relationships in our case. D.W. was not a tenant. The record, read most favorably to D.W.,
shows Carol had no knowledge that Richard had ever violated any criminal law. Richard's sexual
involvement with an adult had stopped 8 years before he met D.W. Our facts are totally different
than Nero. Nero is not sustainable authority for establishing a special
relationship imposing a duty
on Carol to warn D.W. of potential danger.

"Before a landowner may be held liable for an injury resulting from a dangerous condition,
however, the plaintiff generally must show that the defendant had actual knowledge of the
condition or that the condition had existed for such a length of time that in the exercise of
ordinary care the landowner should have known about it. [Citation omitted.]"

The suggestion that Richard is to be equated with and considered to be "property" or a
"dangerous condition" in order to give rise to premises liability, while creative, has no support in
reported Kansas cases.

A similar argument was made in Hackett v. Schmidt, 630 So. 2d 1324,
1328-29 (La. App.
1993), where it was held a wife could not be held responsible under a "premises liability" theory
for her husband's negligent or intentional acts in allegedly sexually molesting a visiting child,
inasmuch as the husband was not "property" and there was no special relationship between the
wife and the child. In Hackett, the husband had engaged in sexual misconduct with
minor females
15 years earlier. This fact was known to the wife, and the plaintiffs argued she should be
responsible for the husband's subsequent unexpected conduct.

The Hackett court ruled there was no special relationship and no duty to
warn. In
response to a "premises liability" theory raised on oral argument, the Louisiana court said:

"The Hacketts argued that Mrs. Schmidt should be liable for failing to warn about or
prevent the
abuse in the same way that she would [be] liable for failing to warn about or prevent an injury
caused by the existence of a hole in the floor of her home or the presence of a dog on the
premises. However, this situation cannot be likened to a premises liability situation, where the
owners of the property may be strictly liable for injuries caused by defects in their property. Mr.
Schmidt is not Mrs. Schmidt's property." 630 So. 2d at 1328-29.

Another case which denied application of premises liability is Eric J. v. Betty
M., 76 Cal.
App. 4th 715, 90 Cal. Rptr. 2d 549 (1999), where the former girlfriend of a parolee, whose
8-year-old son had been sexually molested by the parolee, brought suit against members of the
parolee's family, alleging they had failed to inform her of the parolee's prior conviction for felony
child molestation and, also, that acts had occurred on premises owned by family members.

In Eric J., the family members knew of the parolee's criminal convictions, but
(1) this was
not deemed sufficient to require liability under the theory of premises liability as no relationship
existed between the harm sustained and the premises where the molestation occurred, and (2)
family members were not in a special relationship with the girlfriend and did not owe a duty to
inform her about parolee's criminal past or warn her of potential danger. 76 Cal. App. 4th at
726-28.

In discussing premises liability, the Eric J. court distinguished a case relied on
by the
plaintiff, Pamela L. v. Farmer, 112 Cal. App. 3d 206, 169 Cal. Rptr. 282 (1980), as
not being
based on premises liability. The wife of a sexual offender there was held liable for offenses he
committed because she had invited his victims onto their property, thus, in effect, procuring them
for him. Eric J., 76 Cal. App. 4th at 729. The Eric J. court said the
parolee had been returned to
society, could not be the equivalent of a "brute beast without the capacity to repent," and held his
presence on the property could not be considered a dangerous condition of the property. 76 Cal.
App. 4th at 725. Thus, there was no basis for premises liability. 76 Cal. App. 4th at 729-30.

As to Eric J.'s general negligence argument, the California court said upholding such a
claim would require the court to abandon its long-time rule against liability for mere nonfeasance.
There was held to be no special relationship, and the court would not overturn the "no duty to
aid" rule, which it held, under their facts, would create intolerable conflicts of interests within
families. 76 Cal. App. 4th at 729-30.

The district court in our case, in granting summary judgment to Carol, noted that even if
she knew of her husband's sexual acts with other adult men some 10 years previously, the holding
of Bauswell by and through Bauswell v. Mauzey, 936 F. Supp. 787 (D. Kan. 1996),
precluded
liability. There was no mention of "premises liability" in the Bauswell case, where
children, by and
through their mother, brought a negligence action against a husband and wife and alleged the wife
had a duty to prevent the husband from molesting the children.

Even though actual knowledge of previous sexual abuse by the husband was alleged,
Judge Van Bebber, in granting summary judgment to the wife based on the husband's actions, first
noted that whether a duty exists is a question of law and that the wife maintained there was no
special relationship between her and her husband as that term is defined in Restatement (Second)
of Torts §§ 317-320. The Bauswell plaintiffs had argued the husband
was acting as his wife's
servant in a babysitting arrangement.

After holding no case law had been cited to support the theory that the relationship of wife
and husband is synonymous with that of an employer and employee to give rise to § 317
duty and
resulting liability, the Bauswell decision continued:

"There also is no basis in the record to support a special relationship between the
defendant and her husband based upon § 319, the duty of those in charge of a person
having
dangerous propensities. The plaintiffs do not allege that the defendant had 'charge' of Clifford
Mauzey." 936 F. Supp. at 789-90.

Bauswell is good authority for Carol's argument that she cannot be in
control of or in
charge of Richard. The decision does not relate directly to D.W.'s premises liability claim except
to bolster the fact that Richard cannot be considered a dangerous condition under Carol's control.
Where this court has considered the duty to control, we have required a finding that the person
charged with the duty actually have the ability to control the third person's conduct.
Beshears,
261 Kan. at 561; Calwell v. Hassan, 260 Kan. 769, 783, 925 P.2d 422 (1995).

Richard, as a cotenant of the Bliss home, had an undivided right to possession and control
of the property. See Fry v. Dewees, 151 Kan. 488, 493, 99 P.2d 844 (1940). Carol
had no right to
restrict Richard, as co-owner, from inviting D.W. on to the property. Extension of her ownership
interest into responsibility for Richard's criminal actions is unwarranted.

There are a number of cases of the nature we face here that have been decided around the
country. See Gritzner, 235 Wis. 2d at 803 n.12. Pamela L., 112 Cal.
App. 3d 206, is cited as a
case allowing recovery. Eric J., 76 Cal. App. 4th 715, is noted to be a case not
allowing recovery.
We have previously discussed both cases. The other cases mentioned in the Gritzner
footnote are
factually different, with recovery being allowed where the wife had actual knowledge of her
husband's sexual abuse. J.S. v. R.T.H., 155 N.J. 330, 714 A.2d 924 (1998). Recovery
was also
allowed against a grandmother for failure to protect her granddaughter from a known risk of
sexual abuse by the grandfather. Doe v. Franklin, 930 S.W.2d 921 (Tex. App. 1996).

The cases cited in the Gritzner footnote where recovery was not allowed
included Doe v.
Goff, 306 Ill. App. 3d 1131, 716 N.E.2d 323 (1999); H.B. v. Whittemore, 552
N.W.2d 705
(Minn. 1996); and T.A. v. Allen, 447 Pa. Super. 302, 669 A.2d 360 (1995). Although
decided on
a statute of limitations issue, no recovery would have been allowed under an analysis in
Chaney v.
Superior Court of Los Angeles County, 39 Cal. App. 4th 152, 46 Cal. Rptr. 73 (1995),
which was
not included in the Gritzner footnote.

There is obviously no issue of negligent supervision in our case, as Carol had little contact
with D.W. and he was never under her care, custody, or control. Negligent supervision could not
be a basis for the finding of a duty to warn.

Conclusion

Under our clear Kansas precedent, an actor (Carol) has no duty to control the conduct of
a third person (Richard) to prevent that person from causing harm to others (D.W.) unless there is
a special relationship between the actor and the third party or the actor and the injured party.

There was no special relationship between Carol and Richard or between Carol and D.W.,
giving rise to a duty to warn D.W. of the unknown and unexpected criminal act on Richard's part.

The facts in this case do not give rise to premises liability on Carol's part for Richard's
criminal acts for the many reasons previously set forth in this opinion.

In the absence of a duty, there can be no breach of a duty and no basis for a negligence
cause of action.